According to the University of Idaho’s Office of General Counsel, there is one question to answer when determining whether Ernesto Bustamante’s personnel records should be released, and it concerns the phrase “former public official.” According to Idaho Code, the privacy of public officials remains intact even after they have left office. The question is whether privacy laws still cover a person once he or she is dead.

In First Amendment attorney Chuck Brown’s opinion, the privacy of the deceased is not protected. He said as much in a response brief filed Thursday in Latah County’s 2nd District Court.

Brown’s filing, along with one submitted Thursday by the University of Idaho, will be considered by Judge John Stegner, who will decide whether Bustamante’s records should be released.

Bustamante, who until Aug. 19 was employed at the UI, took his own life after a police standoff Aug. 23. He killed university graduate student Kathryn Benoit the previous evening.

In his brief, Brown wrote that Idaho’s statute does not contemplate protecting the records of a deceased person. In fact, he said that protection would bring up a “panoply” of issues related to the work of historians in later years, for example.

“Is the nondisclosure aspect applicable for 12 hours, 20 years, or 1,000 years?” Brown asked. “The statute is solely contemplating a public official who is alive. (Furthermore) the statute makes it clear that if there is any doubt (then) disclosure is contemplated and preferred.”

In a brief filed last week, he referred to the fact that Idaho Code requires written consent from a former employee to divulge private information.

“Thus, the statute itself is contemplating that ‘former’ must relate to a living person who has the discretion and ability to sign a written consent,” Brown wrote.

If the statute were to extend to a deceased person, the Legislature would have written it “to include representatives of the deceased’s estate,” he said.

Another of Brown’s main claims is that Bustamante surrendered any right to privacy when he murdered Benoit.

“Mr. Bustamante’s actions have totally divested him of any privacy rights enjoyed by a public official,” Brown wrote.

He quoted from the Idaho Public Records Law in writing that he and others requesting Bustamante’s personnel records seek to examine the information to “determine whether those entrusted with the affairs of government are honestly, faithfully and competently performing their functions as public servants.”

“What was the ‘governmental activity’ that took place in regard to protecting the health and well-being of a student from a ‘government official’ in its employ?” Brown wrote. “It is very clear that the acts or actions taken or not taken by the University in this entire situation should be viewed in the light of day. When the doors are shut, the worse is suspected. When the light of day floods through, everyone can gauge for themselves.”

According to a complaint filed by Benoit with the university in June, she entered a sexual relationship with Bustamante that began in fall 2010 while she was enrolled in one of his classes. The relationship apparently ended in mid-May after the former psychology professor put a gun to Benoit’s head. The UI has stated Bustamante’s employment ended at the university on Aug. 19.

Between the time of Benoit’s complaint and death, UI officials had been in contact with Benoit and Bustamante, who filed his own complaint against Benoit for defamation of character in July, according to UI and police documents.

The university has not confirmed what happened during those meetings, nor have they released information about any other sexual harassment complaints that may have been filed against Bustamante. Officials will not say whether the university was aware of Bustamante’s mental illness — sources close to him say he had multiple personality disorder — and whether Bustamante’s cessation of employment was due to Benoit’s complaint and investigation by the UI

The university has expressed its desire to release the personnel records, but officials have asked Stegner to determine if Idaho Code protects Bustamante’s right to privacy now that he is dead.

“There are arguments on either side of whether disclosure of the personnel information of the deceased employee … is appropriate,” UI’s general counsel wrote Thursday. “(We) ask this court to declare the meaning of the term ‘former public official.'”

The university in its brief supplied information about several cases in Idaho and throughout the country dealing with similar privacy issues. Many of the examples resulted in contradictory conclusions, though one case in Idaho indicated that the state considers common law privacy rights to end at death. In another situation, the person’s heirs inherit the right to divulge his or her private information.

Stegner will hear oral arguments from the UI and Brown on Monday, Oct 3.

From the Moscow-Pullman Daily News

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